Category: SCOTUS

This, surely, will not end well. American writer, Brandon McGinley, writing in The Federalist last week, sounded very nervous about where his country – and his country’s media – is headed. Writing from Ireland one can only feel the same nervousness about the situation here. Reflecting on Thomas Jefferson’s famous dictum, “Dissent is the highest form of patriotism,” McGinley finds it now cast on the rubbish heap. He comments:

While it would be senseless for dissent to always be the most patriotic course, this popular concept points to something true: We have a solemn duty to advocate that the state conform itself to certain moral standards that are outside, or prior to, the state. The state is best—it fulfills its role, dare we say its nature, most perfectly—when it pursues objective standards of truth and justice.

Patriotism, then, is not about conforming oneself to the state, nor is it about encouraging the state to conform itself to the majority. It is rather about advocating tirelessly for the state to conform itself to the truth.

But what is truth? Pilate gave up on that one. The American Supreme Court gave up on it as well – and, by virtue of its all-pervasive influence, the rest of us are drifting in its aimless wake. Relativism rules and there is no truth.

Patriot-News will not be a household brand across the globe but it is part of the PA Media Group in Pennsylvania which boasts of reaching millions and a Pulitzer Prize.

McGinley tells us that within minutes of the announcement of last week’s SCOTUS decision on same-sex marriage Patriot-News announced:

“As a result of Friday’s ruling, PennLive/The Patriot-News will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.”

That needed further explanation to some people so in a tweet later that day, the paper’s Editorial and Opinions Editor John L. Micek explained: “This is not hard: We would not print racist, sexist or anti-Semitic letters. To that, we add homophobic ones. Pretty simple.”

This was exactly the consequence which Justice Samuel Alito predicted in his dissent to the Court’s use of the “Selma analogy” in it majority judgement:

[The decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the (SCOTUS) majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

It is here that McGinley sees the death of truth playing out in all its starkness. The new arbiter of all justice and morality has become – not even the will of the majority of the people, which itself is no arbiter of objective truth or morality either – the simple majority of the nine-member Supreme Court of the United States.

The decision to censor anti-same-sex marriage opinions is an incredible genuflection to The Nine of the Supreme Court, He says. Note the opening clause of the censorship announcement: “As a result of Friday’s ruling…” Micek may have gone on say this was about giving no quarter to bigotry, but the direct working is clear: They are excluding certain opinions because those opinions conflict with the Supreme Court.

The Patriot-News, he points out, isn’t censoring bigotry – because if it were, it would have been rejecting anti-same-sex marriage letters yesterday as well as today. The Court didn’t say anything about bigotry. He concludes:

It is censoring dissent—dissent from the new orthodoxy proclaimed by our secular Magisterium, dissent from the prevailing viewpoint of our oligarchs, dissent from the state. And we are to conform ourselves to this orthodoxy not because it is good, but because the state so ordains it.

“As a result of Friday’s ruling…” Six simple words to turn dissent into sedition. Six simple words to the apotheosis of nine men and women. Six simple words to justify anything in the name of the state.

As the Australian barrister, human rights and refugee advocate, Julian Burnside points out the right to life, freedom from arbitrary detention, freedom from torture, freedom of thought and belief, equality before the law etc. are readily accepted in principle. The disagreement arises when the question of protecting those rights is in issue.

The problem is that without our acceptance that there is an objective standard of truth, within the terms of the institutions which we have set up in our democracy, ultimately there is no limit to their power. We are at the mercy of the personal will and judgement – in this case, of nine people on a bench; in other cases, at the mercy of the judgement of elected representatives.

Burnside warns:

There is not much room for complacency. Within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid.

One response to this is that a democratic system allows that government to be thrown out at the next election. This is true, but it is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans. At times, majoritarian rule begins to look like mob-rule.

This is the state we’re in and with our denial of the existence of any objective truth we have no grounds for opposing the decision of any majority – be it one of five against four, or 38 percent against 62 percent. We are at the mercy of those we elect – so we had better do our best to elect the best available; in other words, those who see that there is a truth beyond their own noses and the realm of emotion. Otherwise there is no guarantee that soon we might not be electing anyone. Democracy must rest on truth or it is nothing.